Thurston and Loomis (No. 2)
[2017] FamCA 741
•22 September 2017
FAMILY COURT OF AUSTRALIA
| THURSTON & LOOMIS (NO. 2) | [2017] FamCA 741 |
| FAMILY LAW – EVIDENCE – Subpoena – Where the Husband is granted leave to use documents produced to this Court pursuant to subpoena in Magistrates Court proceedings –Where the remaining orders sought by both parties are dismissed. | |
| Family Law Act 1975 (Cth) | |
| APPLICANT: | Ms Thurston |
| RESPONDENT: | Mr Loomis |
| FILE NUMBER: | BRC | 1010 | of | 2012 |
| DATE DELIVERED: | 22 September 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 19 September 2017 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
That the husband be given leave to use documents produced to this Court pursuant to subpoena by the Queensland Police Service as might be determined appropriate according to law by the Magistrate in any proceedings brought against the husband by the wife in which she seeks family violence protection orders in the Magistrates Court.
That all applications for orders contained in the Wife’s Application in a Case filed 22 June 2017 and in her Response to an Application in a Case filed 12 September 2017 are dismissed.
That all other applications for orders contained in the Husband’s Amended Application in a Case filed 15 August 2017 and in his Response to an Application in a Case filed 12 September 2017 are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thurston & Loomis (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1010 of 2012
| Ms Thurston |
Applicant
And
| Mr Loomis |
Respondent
REASONS FOR JUDGMENT
Before me for determination are various applications for orders in these proceedings between the husband, Mr Loomis, and the wife, Ms Thurston. The substantive proceedings are for property settlement and child support departure. Parenting proceedings in the Federal Circuit Court (“the FCC”) between the parties were concluded a few years ago, with orders being made providing for their only child to live with the mother and spend regular time with the father.
A trial of the competing property and child support applications was heard by me in late 2015. After that trial concluded, I determined that before final judgment could be delivered that the parties’ self-managed superannuation fund needed to be put back into compliant status in so far as that was possible to be achieved, with the assistance of a Court appointed expert. That was achieved last year and funds approaching $600,000 are now held on behalf of the parties’ Superannuation fund by the solicitor who used to act for the husband and his two companies that are also parties to the proceedings.
My final judgment has now been reserved since the last written submissions of the parties were filed earlier this year. Unfortunately for these parties and their child, they have been involved in unrelenting, high conflict litigation now for many years and there is little sign of that abating. Both the husband and the wife assert that the ongoing litigation is having a detrimental effect on their emotional well-being, their health and their ability to get on with life. Of the truth of that, I have no doubt. Sadly, however, not even the delivery of the final judgment, expected in the near future, is likely to put an end to this litigation.
The wife’s applications
The wife now seeks numerous further orders. She seeks the Court’s leave to use affidavit evidence the father filed in this Court earlier this year in support of an application for protection orders in the State Magistrate’s Court and in further parenting proceedings in the Federal Circuit Court. She seeks an order that the husband disclose the name and address of the person he engaged to do some aerial drone surveillance over private property owned by another man who she was in a relationship with earlier this year. She also wants an order that a previous order made in respect of real property held by one of the husband’s companies in the UK continue to be operative until any costs application by her is heard and determined.
The wife also seeks an order that the husband disclose his residential address and provide the name of the partner he lives with. She seeks an injunction restraining him from saying certain things about her in any court documents and she seeks an order that the husband be made the subject of a vexatious proceedings order.
Further, the wife seeks leave to cause a subpoena to issue to the Commonwealth Department of Human Services and for subpoenas to be issued directed at other persons and banks. She also seeks an order that the husband’s passports be surrendered to the Court.
The husband’s applications
For his part, the husband seeks that the wife be made the subject of a vexatious proceedings order, that any costs applications be adjourned to a date after outstanding contempt applications are heard and determined and that caveats or injunctions issue to prevent the sale of three real properties, none of which are registered in the name of the wife.
Further, the husband seeks orders that the wife surrender her passports and the passports of their son until the contempt proceedings have been heard and determined and he seeks orders that prevent her from leaving Australia before then.
He seeks an order that their child’s name be placed on the Family Law Watch List maintained by the Australian Federal Police at points of departure from Australia. He also seeks other injunctions against the wife as well as leave to be able to publish a long list of documents from the parenting and property proceedings in any Magistrates Court proceedings the wife commences against him for family violence protection orders.
I heard the competing applications on Tuesday afternoon, 19th September, 2017 after they had not been reached in the Duty List of Monday 18th September. I heard lengthy oral submissions from both parties and also received and have read written submissions of the husband that were particularly addressed to the application for the injunctions in respect of the three real properties.
The wife’s application seeking that she be permitted to copy and use affidavits filed by the husband in this Court in other Court proceedings
In May of this year, on another one of these interim applications the parties had brought before me, the husband relied on an affidavit to which he attached photographs that he asserted evidenced construction work at a property owned by the wife’s then boyfriend, Mr AB. It was clear the photographs were taken from the air. The husband admitted in Court that day that he had caused those photographs to be taken by an aerial drone.
The wife now seeks this Court’s leave to copy and use that affidavit and its attachments in proceedings she says she wants to commence in the Magistrate’s Court for a family violence protection order and in proceedings she has already commenced in the Federal Circuit Court for orders permitting her to take the child to live in the United Kingdom. She refers to a couple of other affidavits of the husband, filed in this Court, that she also seeks permission to use in those other proceedings.
The wife’s belief that she needs such permission probably stems from events that occurred previously in this litigation. I have previously informed the parties that it is a prima facie contempt of Court for documents obtained by the disclosure process or through the use of subpoenas to be used for an ulterior purpose. Following that, the husband had applied to the Court for orders to permit him to use such documents in other Court proceedings. The wife probably considered she needed to do the same thing in respect of these affidavits.
Affidavits and attachments not obtained from the other side or third parties by disclosure or subpoena are, of course, subject to the general prohibition against publication contained within s 121 of the Family Law Act 1975. However, s 121(9) provides exceptions to that general prohibition. One of those exceptions is:
(a)The communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings.
I am satisfied that affidavits filed in proceedings in this Court and attachments not obtained from the other side or third parties by disclosure or subpoena are such documents that fall within the bounds of that exception. The husband made no submission to the contrary and did not submit that the wife should not be allowed to use any of those affidavits in those other proceedings. I am satisfied that she is permitted to and that she does not actually need the Court’s leave to be able to do that.
Of course, what relevance they have to the issues in dispute in those Courts is another matter and one that I respectfully acknowledge is for those other Courts to determine.
The wife’s application for an order that the husband disclose the name and address of the person who he had fly the drone over the boyfriend’s property
The wife, when asked, told the Court she wants this information to subpoena that person to attend at her intended Magistrate’s Court protection order application. She also said that the person had committed a crime and that she wanted to report them to the Civil Aviation Safety Authority (“CASA”). She could not tell me what crime the person had allegedly committed by reference to any provision of any legislation or regulations.
Although the husband had not said it in any of the three affidavits of evidence he filed and relied upon, he told the Court from the bar table that he did not have that information anymore and did not remember the name and address of the person he had engaged. I told the husband in Court that I did not accept the truth of that assertion.
In any event, as I informed the wife in Court, I do not consider it an appropriate use of this Court’s powers to order the husband to provide her with that information so that she can report that person to CASA. Additionally, given that the husband admits that he engaged a person to fly a drone to take pictures of the wife’s boyfriend’s property from the air without his consent and the affidavit he relied upon in this Court contains evidence of that aerial surveillance, the wife has the evidence upon which she may rely if she commences the protection order proceedings in the Magistrate’s Court. She was not able to offer any other submissions as to why the actual presence in Court of that person is needed to support her application in the Magistrate’s Court.
Accordingly, I am not satisfied that it is an order that should be made. Furthermore, even though I did not believe the husband when he asserted that he does not know the name and address of the person and has no records from which he could provide it, I am satisfied that he will not provide it even if ordered. I will dismiss the wife’s application for that order.
The wife’s application in respect of the interim injunction currently in place in relation to the real property in the UK
On 5 May 2016, I made an order that the husband and his UK company, L Ltd, be permitted to refinance or renegotiate debt currently secured by mortgage registered over UK real property but only to the limit of the existing debt that was being refinanced.
The wife seeks an order for that order to remain in place even after my reserved judgment in the property matter is delivered until her costs applications are heard and determined. She submits the Court would be satisfied that there might otherwise be a risk that the husband would cause L Ltd to dispose of the property or further encumber it so that there would be no equity left in it that could be accessed to satisfy any costs order that might be made in her favour.
The husband described the wife’s application as one of seeking a stay of an order that is not even made yet. I accept there is some merit in describing it as such. However, he told the Court that he will effectively be seeking similar orders in respect of the funds held in trust pending the hearing and determination of contempt applications that he has filed that I have told the parties I will list for hearing once I have delivered judgment.
I told the parties that it is my intention to deliver my reasons for judgment including indications of the orders that I am contemplating making but to then list the matter to hear from the parties further submissions as to the form of the orders I should actually make having regard to my reasons and their own intentions with respect to any other applications. Hearing that, both the wife and the husband informed the Court that satisfied them and the wife said that she did not press this particular application at this time. At the same time, the husband made it clear that satisfied him in respect of his application for the wife’s costs applications to be adjourned until after his contempt applications against her are heard and determined and he did not press that.
The husband’s application for injunctions or caveats against certain real property
The husband listed three real properties that he sought to be made subject to injunctions preventing their sale or, if sold, mandating the proceeds be held on trust until his contempt applications against the wife are heard and determined.
Strangely, given the fact that the husband is now very experienced in this litigation and should be quite aware of the need to serve applications for injunctions against third parties on those third parties, he conceded that these three properties are all registered in the name of third parties and that he had not served them. I immediately informed him that he could not obtain those orders in such circumstances.
Two of the properties are registered as owned by Mr AB, the wife’s boyfriend, who the wife told the Court she has recently broken up with. The third property is registered as owned by the wife’s mother.
The husband’s evidence and his submissions made it reasonably clear that he alleges, well after the trial in the substantive property settlement proceedings has concluded, that Mr AB and the wife’s mother own those properties on constructive trust, with the wife having some beneficial interest in them. The evidence he took me to, in my judgment, fell far short of establishing any sort of reasonably arguable case in that respect. In any event, the trial of the proceedings is concluded and my judgment is reserved. A constructive trust case against those third parties was not maintained by the husband at the trial. Neither of those third parties was joined to the proceedings and no orders were sought against them.
I am satisfied, with respect, that the husband’s application is misguided. I will not be making any orders against the real property of those third parties in these property settlement proceedings. I will not grant injunctions restraining them from dealing with their property on this application.
The husband apparently considers that in the contempt applications that he has filed against the wife, that are yet to be heard and determined, that he has some prospect of obtaining relief as against these third parties and their real property. At this point in time, I am unclear on how he considers that is to be legitimately achieved. No doubt, the husband will endeavour to make that clearer to me at the appropriate time.
The husband’s application for orders that the wife surrenders her UK and Australian passports and those of their child and be restrained from travelling outside Australia
When Judge Howard of the Federal Circuit Court (“the FCC”) made final parenting orders a couple of years ago, he ordered that the child’s name be removed from the Federal Police Family Law Watchlist and permitted the mother to travel from Australia with the child during such times as the child is in her care pursuant to the parenting orders he otherwise made.
The mother has in recent times filed an application in the FCC for those final parenting orders to be varied so that she can relocate with the child permanently to the UK. That may or may not end up being heard in the FCC. It could be transferred back to this Court as an international relocation matter.
In the meantime, the husband asserts that the mother should again be restrained from travelling overseas and the child’s name put back on the Watchlist. He asserts that circumstances have changed since Judge Howard’s orders so as to justify such orders. He asserts the mother is a serious flight risk, even though she has applied for the orders and has been permitted to travel with the child out of the country over the last few years and has not done so.
The husband founds his submissions on assertions of fact and belief that he claims to honestly and reasonably hold. He has filed applications for the mother to be dealt with for contempt of Court for her alleged contravention of orders over the last few years. Indeed, the mother concedes that she contravened an order in 2014 relating to financial matters. The husband claims that he has very good prospects of succeeding in the contempt applications and obtaining relief that requires the wife to pay him in excess of $1,000,000. He asserts a belief that the wife knows that she will have to repay that money and that is the reason why she is likely to flee the country with the child if she is not restrained from doing so.
The wife denies any such knowledge and speaks confidently of defending the husband’s contempt applications. I am also conscious that there is almost $600,000 currently held in trust for the parties’ superannuation fund that is to be made the subject of the property settlement orders that I am yet to make. The wife claims all of that in the substantive proceedings. Of course, so does the husband.
I pointed that fact out to the husband and asked him whether he believed the mother would flee the country even though she is awaiting my judgment in respect of that $600,000. He said he believed she would.
At the same time, the wife pointed out and the husband conceded it is true that he travelled out of the country late last year and plans on possibly travelling out of the country again this November. She submitted in a “tit for tat” fashion that if she is restrained from travelling out of Australia then so should the husband be restrained.
Considering all of the evidence relied upon and the oral and written submissions, I am not persuaded that the wife is a flight risk at this point in time. She could easily have left the country before now without first seeking the leave of this Court if that was her intention. That she has not demonstrates that she, at least, does not fear the outcome of the husband’s contempt application and that it is only the UK that she is interested in moving to and that she is conscious of the provisions of the Hague Convention on the Civil Aspects of International Child Abduction that would likely see their child returned to Australia if she took him without leave to do so.
Further, no evidence that the husband adduced in support of his application persuaded me that the outcome of the contempt applications that are yet to be heard are likely to be so bad for the wife that fleeing the country could objectively be seen as a better option for her, thus raising the level of risk of her fleeing the country, with or without the child, to anything near an unacceptable risk that must be protected against.
I will dismiss these applications of the husband.
The husband’s application for an injunction restraining the wife from publishing my pending judgment and from directly or indirectly interfering with the business of the husband’s companies
The husband referred to s 121 of the Family Law Act and acknowledged that it is a statutory prohibition on publishing a judgment if it identifies the parties. Nevertheless, he seeks an injunction from the Court restraining the wife from publishing in the future.
I have previously discussed the question of whether an injunction such as the one the husband seeks can be granted even though s 121 does not include any provision expressly conferring power on this Court to grant injunctions either requiring cessation of continued publication in contravention of s121 or enjoining future publication in contravention of the section (see Xuarez and Vitela [2012] FamCA 574).
I determined that there is power to grant an injunction in cases where special circumstances exist, to restrain a contravention of s 121.
I do not consider such special circumstances exist in this case. The husband has not even referred to any evidence he has adduced that would persuade me that the wife has any intention of publishing a future judgment in breach of s 121.
In addition, he did not even refer me to any evidence that he filed that would support the granting of an interim injunction that he seeks restraining the wife from interfering with the business of the husband’s companies. I am not persuaded that the injunctions should be granted and I will dismiss his application for injunctions in this form.
The husband’s application that the wife’s costs application be adjourned until his contempt applications against her are heard and determined
The husband submitted that any application the wife brings for costs, including her application for costs that is currently adjourned in the FCC pending the delivery of my judgment in the property proceedings, should await the outcome of his contempt applications.
As I have already mentioned, I informed the parties that I would give each of them the opportunity to make submissions as to the form of orders to be made after I publish my reasons for judgment that will include some reference to the orders that I am considering making. I will also have a directions hearing in respect to the contempt applications so as to list them for determination. Any submissions about the hearing of any costs applications can be made then as well. I do not consider it necessary to make any orders about applications for costs that are only moot at this time. Furthermore, as Judge Howard is currently seized of the wife’s costs application in respect to the parenting orders proceedings that were finalised before him, I do not intend to make any orders that purport to fetter or usurp Judge Howard’s role in that process. Any consideration of when his Honour determines that application is a matter that I currently consider is best left for his Honour.
The husband’s application for leave to be able to use certain documents in the event that the wife commences protection order proceedings against him in the Magistrates Court
As I have already said, I am quite satisfied that affidavits filed in proceedings in this Court and attachments not obtained from the other party or third parties by disclosure or subpoena are documents that fall within the exception to the prohibition on publication provided for in s 121(9)(a) of the Family Law Act and that leave of this Court is not required to use them in Magistrates Court proceedings.
Accordingly, the husband is as entitled to use any such documents as the wife is. Similarly, transcripts of proceedings in this Court fall within that same exception. As for “material” produced to this Court under Subpoena from the Queensland Police Service, because I am satisfied that the husband could just obtain that same material by subpoena issued out of the Magistrates Court and use it in proceedings in that Court as determined by the Magistrate, in the interests of saving the Magistrates Court and the Queensland Police Service administrative time and effort, I consider it appropriate to grant the husband leave to use it in the Magistrates Court if he considers that necessary. Of course, as I have already said earlier, what the Magistrate considers of it is a matter for her.
The husband’s application for the issue of subpoenas
The husband seeks leave to cause the issue of subpoenas to the wife’s mother, to Mr AB, to the Commonwealth Bank, to Westpac Bank, to the Tax Office, to two firms of solicitors, to the NAB, to the ANZ, to a housing construction company, and to a Marine sales firm.
He says he requires all of the many documents he wants those parties to be made to produce for a “legitimate forensic purpose” in connection with his contempt applications.
It is not totally clear to me what he is hoping to do with such documents at the hearing of his contempt applications, but I ascertained at the hearing, when he started speaking about constructive trusts, that he believes that he is somehow going to litigate issues through contempt proceedings that should have been raised, if they were going to be raised at all, in the property settlement proceedings in which the trial is concluded and judgment is now reserved.
In any event, I indicated to the parties that I would have a directions hearing in respect of the contempt applications once I have finalised the property settlement proceedings. I intend to do that. It is at that time that questions relating to preparation for that hearing will be dealt with.
The husband said that he was bringing this application now to move those contempt proceedings along. I will not grant leave now for him to cause all of those subpoenas to issue. I also make it clear that in saying this I am not in any way suggesting that I will give him leave to do so in the future. The relevance of the material he seeks production of to his contempt applications is something that will have to be addressed by the husband if he seeks the issue of them all again in the future.
The wife’s application for an order that the husband disclose his residential address and the name of his partner
Judge Howard’s parenting orders included the following:
That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
The wife told the Court that the husband has not told her of his current residential address. The husband conceded to this Court at the hearing that he has not. He asserted that he has a “reasonable excuse” for contravening Judge Howard’s Order. When I asked him whether he would tell this Court his residential address if I asked him or ordered him he told the Court quite clearly that he would not. Again, he claimed he has a “reasonable excuse” for that. As I understand it, he asserts he fears for his life at the hands of the wife and is too scared to give her his address. The honesty and reasonableness of that asserted fear and excuse for his contravention becomes difficult to accept in the light of his own admission that he recently went over to the wife’s house to personally serve her with Court documents even though he asserted that he “knew she would not” be at home.
In any event, as I informed the wife at the hearing, I consider this is a matter for Judge Howard to deal with, if anyone is to deal with it. His Honour made the order that the husband admits he is contravening. The husband informed me that he would not provide his address if I asked him to provide it or ordered him to. I considered that would just create an immediate challenge to yet another Court’s authority when he is already contravening the FCC’s orders and that it would be far more appropriate for matters pertaining to the parenting orders to remain with the FCC and the Judge who made them rather than to be dealing with them as contraventions in two Courts.
The wife told the Court she already knew the street and the block of apartments the husband lives in in any event, but just did not know the number of the apartment. She was unable to make persuasive submissions as to why she should immediately get an order from this Court for the husband to tell her the number of his apartment. The orders do not provide for her to attend there for handovers of the child.
I will not make such an order when this Court is seized of property settlement and child support departure matters only.
The wife’s application for leave to issue a subpoena to the Commonwealth Department of Human Services
The wife asked for leave to be able to cause a subpoena to issue to this Commonwealth Department. She adduced evidence that shows that Centrelink has levied an overpayment to her and requires her to repay in the order of $20,000 in overpaid benefits. There is evidence that there is a thirteen page document of complaint against her in the possession of the Department from an unnamed notifier. She believes it is the husband’s document. The Department will not release it to her. That is why she seeks the issue of a subpoena for its production.
The husband admits that he has reported the wife to Centrelink. That admission did not extend as far as admitting he is the author of the thirteen page document, though he did not deny it.
Again, in the light of the fact that the property settlement dispute had been to trial, following on from which my judgment remains reserved, I do not accept that the production of the document of complaint to the Department is of any relevance in these proceedings. I will not make the order.
The wife’s application for the husband to surrender his passport and be restrained from leaving the country
As I have already observed, the wife made a “tit for tat” application for these injunctions given that the husband made application for the same injunctions against her. Indeed, the wife’s application is as brazen as only seeking such injunctions “in the event that [the husband’s] application is not dismissed”.
The wife was unable to advance any sound reason why the husband should be restrained from travelling out of Australia and as to why he should be made to surrender his passport. I will dismiss her application.
The wife’s application for leave to cause other subpoenas to issue
The wife again prefaced this application with “in the event that [the husband’s] application to issue 24 subpoenas is not dismissed” that she be permitted to cause subpoena to issue to the husband’s daughters, the husband’s partner and any Australian banks “she wishes”.
The inappropriateness and abusive nature of that application in the circumstances is obvious. Unfortunately, it is so typical of the nature of the behaviour of the husband and the wife towards each other in this litigation now.
I will not make the order sought.
The wife’s application to be given leave to file a contravention application including 20 alleged contraventions
This application was not pressed by the wife after I informed the parties of my intention to have a directions hearing to deal with the contempt and contravention applications after I have delivered judgment in the property and child support proceedings.
The applications for vexatious proceedings orders
Each of the husband and the wife made applications for the other to be made subject to a vexatious proceedings order. Each claimed the other has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. I am reasonably satisfied that there is merit in the claim of each of them. Indeed, I reminded the parties that each is already subject to an order made by me that neither may commence an application in this Court without first obtaining leave from me.
Neither party made any submissions referencing Part X1B Division 2 of the Family Law Act or any of the provisions of that Division. Neither referenced the fact that s 102QB(2) confers discretion on the Court to make any or all of the orders that are set out in that sub-section. Both appeared to have a mistaken view that this Court has the power to make an order prohibiting a person from instituting proceedings in any Court or Tribunal of any jurisdiction. I do not accept that it does.
Although I consider that each of the husband and the wife has made applications in the proceedings in this Court over the last few years that are vexatious within the meaning of the term “vexatious proceedings” as that term is defined in s 102Q of the Act (either an abuse of process, done to harass or annoy or to cause delay, commenced without reasonable ground or conducted in a way so as to harass or annoy), the fact that I have already made the order obliging the parties to obtain my leave before an application either of them seeks to file will be listed for hearing causes me to stop short of making any vexatious proceedings order on these applications.
I will not do so.
I make the orders that are set out at the commencement of these written reasons.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 September 2017.
Associate:
Date: 22 September 2017
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